Minutes
Public Hearing
of the
Louisville Metro Air Pollution Control Board

August 20, 2003

A public hearing of the Louisville Metro Air Pollution Control Board was called to order August 20, 2003, at 9:01 a.m. in the Board Room of the Louisville Metro Air Pollution Control District, 850 Barret Avenue, Louisville, Kentucky, by the Chairman, Joseph Vibbert.

General Statement, Rules, and Purpose

The Chairman read the opening announcement, rules, and the purpose of the hearing, which was the review of five proposed regulations, one of which was proposed to be amended and the other four were proposed to be repealed.

1. Amendment to Regulation 5.02 Adoption of Federal Emission Standards for Hazardous Air Pollutants Version #13, Draft #2 - Proposed, June 17, 2003

Mr. Trout explained that Regulation 5.02 incorporates by reference the federal hazardous air pollutant regulations in 40 CFR Part 61 and Part 63. This regulation was last amended on January 15, 2003. Regulation 5.02 is updated several times a year so that the District’s regulation is relatively current with these federal regulations.

Mr. Trout said that during the written comment period, the only comment received was in support of the regulation, but it was noted that these technology-based standards do not consider the residual risk from the resulting emissions. He said that the District agrees with the comment that the first phase of the federal maximum achievable control technology (MACT) program, that establishes technology-based standards, does not address health-based issues. In the second phase of the federal MACT program, the residual risk portion, the U.S. Environmental Protection Agency (EPA) could establish more stringent MACT standards that consider risk. The Risk Management Plan, Part 1, developed by the Risk Management Work Group of the West Jefferson County Community Task Force, details a process and framework for developing a recommended strategy to reduce or eliminate identified health risks. The District has adequate authority to also address the commenter’s concerns and this approach will be evaluated through the Risk Management Plan process.

Mr. Trout said that the District does not recommend any changes to what was proposed based upon comments made during the public comment period. However, he said that the EPA did make some changes to these federal regulations on June 23 that affected 48 of the subparts in Part 63 and on July 18 that affected subpart MM of Part 63.

Mr. Trout said the District intends to recommend at today’s Board meeting that the Board adopt proposed amended Regulation 5.02 Adoption of Federal Emission Standards for Hazardous Air Pollutants as proposed except for the inclusion of these two additional Federal Register notices, pending evaluation of any comments made at today’s Public Hearing.

Statements

No statement was made.

2. Repeal of Regulation 8.01 Mobile Source Emissions Control Requirements Version #14, Draft #1 - Proposed, July 7, 2003

3. Repeal of Regulation 8.02 Vehicle Emissions Testing Procedures Version #6, Draft #1 - Proposed, July 7, 2003

4. Repeal of Regulation 8.03 Commuter Vehicle Testing Requirements Version #3, Draft #1 - Proposed, July 7, 2003

5. Repeal of Regulation 8.04 Motor Vehicle Tampering Prohibition Version #2, Draft #1 - Proposed, July 7, 2003

Mr. Trout said that the issue for Board consideration is not whether the Vehicle Emissions Testing (VET) program is or is not a good program, or whether the doors at the VET testing centers should be open on November 1, 2003. In 2001 the Kentucky Legislature enacted legislation that requires the VET Program to end before November 1, 2003. The issues for Board consideration are should the Board maintain regulations for a program that will not be implemented after October 31, 2003, and should the District initiate a revision to the 1-hour ozone and carbon monoxide maintenance plans that are a part of the EPA-approved State Implementation Plan (SIP). The VET program will end October 31, 2003, to comply with KRS 77.320(1). The alternative to the Board not repealing these regulations is that the Board would have regulations in effect that are not being implemented. If the District does not implement a program that is a part of the EPA-approved SIP, the EPA could make a finding of failure to implement the SIP and notify the Governor of this failure, starting an 18-month sanction clock.

Mr. Trout noted that six comments were received before the close of the written comment period and fourteen comments were received after the close of the written comment period. In general, the comments received after the close of the written comment period addressed the issue of whether the VET program should be maintained or ended. Nine of these late comments favored some form of a VET program, generally along the lines of the written comments from Greater Louisville, Inc., and five of the comments were against continuing a VET program. These late comments did not identify any pertinent, substantive issues beyond those raised by the comments that were received during the written comment period.

Mr. Trout summarized the comments made during the written comment period and the District’s responses:

1. The VET program should not be discontinued. The District believes that maintaining the VET regulations but not implementing or enforcing them does not serve a useful purpose. Because the VET program is a part of the federally-approved maintenance plan for both the federal CO and the 1-hour ozone standards, the SIP must be revised to reflect that the VET program will not be implemented after November 1, 2003.
2. Regulation 8.04, relating to prohibitions against tampering with vehicle emissions control equipment, should be retained. Without implementing the VET program, it is unlikely that the District would become aware of instances of motor vehicle tampering violations. If the District did become aware of such a violation of the federal rules, the District would provide this information to the EPA for federal enforcement.
3. If the VET program is retained or reinstated, it should be revised. The District agrees that if there were to be a VET program in the future, there are modifications to the current program that would be appropriate to make.
4. The VET program was the principal component of the EPA-approved maintenance plan that was part of the redesignation of the Louisville area to attainment of the 1-hour ozone standard. That redesignation was premature. The redesignation of the Louisville area to attainment for the 1-hour ozone standard is not the subject of this formal public comment period or public hearing. The District has acknowledged that the VET program is currently a part of the 1-hour ozone maintenance plan. With respect to the 1-hour ozone maintenance plan, the Regulatory Impact Assessment provides the necessary documentation that the requirements for the maintenance plan would still be met without future credit for reductions from the VET program.
5. The projected mobile source emissions should not be accepted without additional consideration. The projected mobile source emissions, as calculated using the EPA’s MOBILE6 model, recently underwent a 30-day public comment period and a public hearing and were reviewed by the Kentuckiana Regional Planning and Development Agency (KIPDA), the Kentucky and Indiana air pollution control programs, the Kentucky and Indiana departments of transportation, Regions 4 and 5 of the EPA, and Regions 4 and 5 of the Federal Highways Administration. That public review process also included a demonstration of transportation conformity using the current transportation planning assumptions. The District disagrees that further consideration of the projected mobile source emissions is needed.
6. A demonstration that this proposed SIP revision will not interfere with attainment or maintenance of the other ambient air quality standards, including the 8-hour ozone and PM_2.5 standards is necessary for EPA approval. The District will work with the EPA regarding this attainment/maintenance demonstration comment.

Mr. Trout said that the District intends to recommend that the Board repeal Regulation 8.01, Regulation 8.02, Regulation 8.03, and Regulation 8.04 at today’s Board meeting, pending evaluation of any comments made at today’s Public Hearing.

Public Comment

Ray Pierce, Flowervale Lemont Pierce Neighborhood Association, said that if everyone in this county that had their vehicles VET tested quit driving today, there would still be 300,000 vehicles being driven through our community each day. Ending the VET program will eliminate five million miles a year of driving to the VET centers. The regulations should be repealed. VET testing should be eliminated as required by the government in Frankfort.

John Riley, member of Stop The Vet citizens group, said they tried to address this issue with the local officials. Their group was forced to go to the state Legislature to get action on ending this program. The Legislature agreed with the citizens that this program does need to end. It was fortunate for our community that this issue was brought before the Legislature and they did agree with the citizens on this issue. The Board and the Air Pollution Control District are now forced to look at meaningful ways for clean the air in this community and to look at the industrial polluters in the western part of the county.

Winnie Hepler, Justice Resource Center, said that she was in Frankfort when the legislative committee discussed the VET bill. She said that Senator Seum told the committee that Jefferson County was in compliance with the federal air quality standards and that the VET program was not needed anymore. The members of the committee were not from Jefferson County and they believed that Jefferson County was in compliance; no mention was made of the new ozone standard. She said that she believed that the members of the committee were deceived.

Ron Gambrell, PRP/Valley Station Concerned Citizens, said that he believes that the VET program should be suspended for a period of two years so that the air quality over that time could be analyzed to determine the need for a VET program.

Donna Mancini said that she strongly supports ending the VET program as scheduled. The VET test is a feel-good program that makes everybody think they are doing something to cut the pollution. VET testing alone does not reduce pollution and until we accept that, we will never go after real sources of pollution in our community. We are advocating increased pollution by thinking VET testing is helping us clean the air.

Tim Corrigan, representing Greater Louisville, Inc. (GLI), read the GLI policy statement that was submitted during the written comment period. He said that GLI’s members, as well as other industry members and employers throughout the county, have identified to the District significant voluntary emission reductions for this ozone season, as summarized in the Voluntary Emission Reduction Report Summary. The latest total is almost 10,000 pounds per day.

Pat Moran said that the Board members need to understand that they do have a choice in terms of whether the VET is eliminated or not. Mr. Moran provided the Board with a copy of the incorporation of House Bill 618 into KRS 77.320. He said that the issue is the actual language contained in paragraph (1). For the requirement to eliminate the VET program to apply, Jefferson County must meet all of the requirements in the first part of the first sentence, specifically, whether by December 1 following the approval of a consolidated local government (November 2000), had the local government been notified by the EPA that Jefferson County was in attainment of the air quality standards for ozone, carbon monoxide, and nitrogen dioxide. The EPA notice that Jefferson County was redesignated to attainment for the 1-hour ozone standard was published in The Federal Register on October 23, 2001, and effective November 23, 2001. Therefore, at the time the new consolidated local government was approved, Jefferson County was still designated as nonattainment for the 1-hour ozone standard.

Mr. Moran said that the new 8-hour ozone standard was finalized by the EPA in 1997 and upheld by the U.S. Supreme Court in February 2001, and the EPA, in June 2003, proposed options for implementation of the 8-hour ozone standard. In June 2000 and again in July 2003, Governor Patton recommended to the EPA that Jefferson County be designated nonattainment for the 8-hour ozone standard. However, to date, the EPA has not made any area designations pursuant to the 8-hour ozone standard. Therefore, the provisions of KRS 77.320 do not apply to Jefferson County, and the Board continues to have the authority to make decisions regarding the VET program. It is up to the Board to decide whether this community needs a VET Program to continue to improve air quality in Jefferson County and to attain the 8-hour ozone standard.

Adjournment

The public hearing adjourned at 9:32 a.m.